Humanitarian
law and Islam

A
unique gathering of religious and modern legal experts took
place in the Pakistani capital Islamabad at a conference organized
by the ICRC and the International Islamic University of Islamabad.
The aim was to discuss the protection of war victims in the
light of Shari’a (Islamic law) and international humanitarian
law. Common values and respect for human dignity were explored
from both perspectives.

AMID
increasing polarization between civilizations following the
11 September 2001 attacks and several conflicts in the world,
the conference was an attempt to help Muslin scholars articulate
the Islamic interpretations and explanations on the subject.
During this meeting, international humanitarian law (IHL)
experts and Muslin scholars, professors and teachers of law
and Shari’a could express and listen to the different
perceptions and eventually notice certain useful convergences
between the two bodies of law.

“The protection of human life, property and dignity...
these are universal Islamic doctrines that predate IHL,”
said the Syrian Islamic scholar, Dr Wahbeh Al-Zuhili, who
is considered an authority on Islamic law. This was also pointed
out by Dr Ameur Zemmali, ICRC adviser, pointed out in his
presentation on the Geneva Conventions and their additional
Protocols, their history, interpretation and application.

Conduct
of war

With the advent of modern warfare and changing patterns
of conflict, IHL was developed to relieve and reduce human
suffering in times of conflict. The Shari’a governs
the Muslim way of life, covering not only religious, administrative
and judicial aspects but also the conduct of war. The sources
of Islamic law are the Qura’an and the Tradition of
the Prophet Mohammad (Sunnah). Evolution in these laws can
be followed through documented consultations and consensus
of religious scholars over the last 1,400 years.

It was because of this primacy of the concept of protection
of human life, particularly of non-combatants, that Muslim
scholars declared the catapult as an un-Islamic weapon for
its ability to inflict indiscriminate havoc. However, the
development of warfare throughout history led Muslim scholars
to formulate new rules.

According to Professor Salah Abdul-Badi Shalaby from Egypt,
Islam clearly differentiates between a combatant and a non-combatant.
Islamic rules also lay out comprehensive guidelines for the
protection of non-combatants, which are similar to the provisions
enshrined in IHL. One such shared provision is the importance
of a sanctuary within war zone. Similarly, both laws strongly
advocate humane treatment of the enemy. Interestingly, Islamic
law also provides for the provision of water to enemy camp.

The treatment of prisoners of war also clearly outlined in
Islam as it is the IHL, both advocating compassion to the
captured enemy. “Treat people the way you want them
to treat you,” said a senior Saudi scholar Dr Abdul
Rahman bin Zayd al-Zinedi, explaining Islam’s emphasis
on forgiveness. There is also coherence between the two systems
of law over treatment of medical personnel, women and children,
the injured, the missing, the dead and displaced people.

Although Islam suggests reciprocity of action, the Muslim
scholars present at the conference were of the view that forgiveness
and compassion are preferred acts in Islam. It was perhaps
due to this reason that Muslim scholars trained to select
the more flexible verses from the Qur’an concerning
similar issues. Explaining this practice, the Syrian scholar
Dr Wahbeh Al-Zuhili said, “Although the Qur’an
may have more than one verse pertaining to a certain issue,
the scholars choose the one that is flexible when formulating
a law.”

Therefore, Islam prohibits immorality, humiliation, neglect
and excesses the dignity of human beings, even when committed
against the enemy. Collateral damage, too, is covered by the
Shari’a, prescribing compensation for loss of life and
property to non-combatants, either Muslims or non-Muslims,
in the course of a conflict. Ethnic cleansing is also strictly
prohibited by Islam, as all races are the creation of God
— another common ground with IHL.

Despite an agreement between IHL and Islamic law on the sanctity
human life, property and dignity and their focus on achieving
peaceful coexistence, mutual respect and cooperation in all
spheres of life, there still remain certain areas where opinion
differs. This may be due to interpretations that more political
than academic.

Grey
areas

Although the objective of the conference was to discuss
the relevant provisions of both legal systems from academic
point of view, the situation in Palestine, Afghanistan and
Iraq, among others, raised some argument over the application
of IHL, which led to questions regarding legitimacy of military
action particularly in Iraq. ICRC experts explained that IHL
deals with limiting conflict’s effects on victims and
not with the legitimacy of a conflict. But many participants
called this a disparity in the international law, which on
the one hand, legitimizes war by the powerful nations and
on the other hand, restricts the options of the aggressed
to defend themselves. “We need to address asymmetrical
distribution of power in the world whereby a weak party is
at the mercy of the sophisticated warfare of a more powerful
enemy,” commented one student, a concern endorsed by
many Muslim scholars at the conference. “Certain military
actions by powerful nations are considered legitimate wars,
but defence by Muslims is dubbed as terrorism, widely condemned
by the West. Similar movements, for example in European countries,
do not come under the purview of the global war on terror
and are shrugged off as internal matters of those states,”
said a professor of Islamic Law at the Islamic University
in Islamabad.

Bridging
differences

Despite its many overlaps with the Islamic law, Muslim scholars
maintained that IHL is a man-made law and only acceptable
to Muslims so long as it does not conflict with the Shari’a.
Islamic law has greater primacy for Muslims as it is a matter
of their faith that allows no room for deviation. However,
the realization that there are more similarities between IHL
and Islamic law than differences in both content and spirit
remains an important outcome of the conference. There was
a consensus about the neutrality of ICRC that gives it the
credibility to access victims of conflict in even the most
intense war zone, without any distinction. Contact and communications
will clear perceptions and construct a reality that is in
the interest of humankind. The conference broke new ground
and as Dr Mehmood Ghazi, president of the Islamic Universitysaid:
“This must continue.”

Hadia Nusrat
Hadia Nusrat is a journalist based in Islamabad.

Echoes from participants

Scholar Salbiah Ahmad, Malaysia: “The
first requirement to building bridges and trust between
Muslims and the international community is transparency
— this sharing between IHL and Shari’a experts
is a positive step in that direction.”Dr Zemmali, ICRC adviser in Cairo:
“The participants to this conference were able
to establish that there were no major contradictions
between secular international humanitarian law and the
relevant principles of of Shari’a in times of
war.”Professor Ismail Mohammad Hanafi Al Haj, Sudan:
“Apart from the fundamentals of Shari’a
that cannot be altered, this conference has answered
and raised many questions that will continue to be discussed
among scholars over time.”